R v Lyberopoulos

[2017] SASCFC 139

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LYBEROPOULOS

[2017] SASCFC 139

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Hinton)

27 October 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING

Application for permission to appeal against sentence.

Applicant pleaded guilty in the District Court to three counts of trafficking in a large commercial quantity of cannabis contrary to s 32(1) of the Controlled Substances Act 1984 (SA).

The applicant, who is 68 years of age, was sentenced to imprisonment for nine years. That sentence was to be served cumulative upon a sentence in relation to which the applicant was on parole at the time of his committing the trafficking offences, being one year, two months and 22 days. The Judge fixed a non-parole period of six years and nine months.

The applicant argued that having regard to his role in the criminal enterprise, to his explanation for offending, his contrition, his age and personal circumstances, the sentence imposed was manifestly excessive.

Held (Hinton J with Nicholson and Bampton JJ agreeing): Permission to appeal granted; appeal dismissed.

1.       Having regard to sentences imposed in recent times in cases involving trafficking in large commercial quantities of cannabis, it was arguable that the sentencing Judge’s starting point of 12 years was manifestly excessive. Permission granted.

2.       If the sentencing Judge had imposed separate sentences for each of the offences, taking into account the fact that the scale of the enterprise could not have escaped the applicant, the relative blameworthiness of the applicant, and the applicant’s antecedents, a starting point for each offence of around four years would not have been excessive.

3.       In all the circumstances, the sentence imposed was not manifestly excessive. 

Criminal Law (Sentencing) Act 1988 (SA), s 18A; Supreme Court Act 1935 (SA), s 48(4); Controlled Substances Act 1984 (SA), s 32(1); Criminal Law Consolidation Act 1935 (SA), ss 352(1), 353(4), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; R v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58; Markarian v The Queen (2005) 228 CLR 357 ; R v Young (2016) 126 SASR 41; Power v The Queen (1974) 131 CLR 623 at 629; Lowe v The Queen (1984) 154 CLR 606; The Queen v Robinson (1979) 22 SASR 367; R v Faehrmann; R v Moore; R v Price-Austin (2014) 118 SASR 549, applied.

R v LYBEROPOULOS
[2017] SASCFC 139

Court of Criminal Appeal: Nicholson, Bampton and Hinton JJ.

NICHOLSON J:

1. I agree with the orders proposed by Hinton J and with his reasons.

   BAMPTON J:

2. I agree that permission to appeal should be granted but the appeal dismissed for the reasons given by Hinton J.

   HINTON J:

   Introduction

3. The applicant pleaded guilty in the District Court to three counts of trafficking in a large commercial quantity of cannabis, each committed contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (the trafficking offences). Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) he was sentenced to one penalty for all three offences, being imprisonment for nine years. To that sentence was added the balance of a sentence in relation to which the applicant was on parole at the time of his committing the trafficking offences, being one year, two months and 22 days, resulting in him being sentenced to imprisonment for 10 years, two months and 22 days. The sentencing Judge fixed a non-parole period of six years and nine months and ordered that the sentence commence on 14 October 2014, when the applicant was taken into custody.

4. The applicant unsuccessfully applied to a single Judge of this Court for permission to appeal.[1] He now seeks the determination of the question of permission by the Full Court as he is entitled to do under s 48(4) of the Supreme Court Act 1935 (SA). The sole ground of appeal advanced is that the sentence imposed for the trafficking offences was manifestly excessive. I would grant permission to appeal but dismiss the appeal. My reasons follow.

   [1]    R v Lyberopoulos [2017] SASC 92.

   Manifestly excessive

5. The power of this Court to interfere on an appeal instituted with permission under s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) is contained in s 353(4) of that same Act. That power is conditioned on the Court being satisfied that “the sentence is affected by error”. Sentencing being the quintessential example of the exercise of judicial discretion, the concept of error for the purposes of s 353(4) has long been taken as meaning error in the House v The King sense. That is to say:[2]

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

   [2]    House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

6. Generally speaking, permission to appeal against a sentence imposed is granted where it is reasonably arguable that an error in the House v The King sense has occurred.[3] In the interests of the effective administration of justice it is the practice of this Court on an application under s 48(4) of the Supreme Court Act 1935, engaged through s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935, to insist that counsel make all submissions going to the question of permission in addition to all submissions in support of the appeal in order that if permission is granted the Court need not reconvene. That practice was followed in this case.

   [3]    R v Parenzee (2007) 101 SASR 456 at [22] (Doyle CJ; Anderson and Kelly JJ agreeing).

7. As mentioned, the applicant contends that the sentence imposed was manifestly excessive. In Dinsdale v The Queen Gleeson CJ and Hayne J said:[4]

   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

   [4] (2000) 202 CLR 321 at [6]. See also Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

8. In R v Morse King CJ described the approach to be undertaken by this Court where manifest excess was asserted. He said:[5]

   To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. ...

   [5]    R v Morse (1979) 23 SASR 98 at 99.

9. To similar effect in Hili v The Queen French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[6]

   … what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

   [6] (2010) 242 CLR 520 at [60].

10. It must be borne in mind:[7]

    Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applieshttp:// - .

    (footnotes omitted.)

    [7]    Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    The sentence imposed and the reasons given

11. The sentencing Judge commenced his sentencing remarks by identifying the maximum penalty applicable in relation to each count, before setting out the circumstances of the offending in summary form. He said:

    The first, count 6, relates to the supply of 10 pounds of cannabis organised by you for delivery interstate to the recipient NS, between late May 2014 and 1 June 2014 as detected by telephone intercepts. The second, count 8, involves the supply of 14 pounds of cannabis from South Australia to the Northern Territory to NS between mid June and mid July 2014. The third count, count 10, took place between mid and the end of July 2014 and involved the seizure of 14 pounds of cannabis at the Darwin Airport, the recipient again being NS. It is further accepted that you played a minor role inasmuch as you made telephone contact in relation to an uncharged transaction, count 14, involving the supply of 30 pounds of cannabis in the Northern Territory.

12. The Judge observed that the offending took place over a period of two and a half months and involved cannabis with a value of between $50,000 and $100,000. The offending, he said, was particularly serious.

13. The applicant’s motivation for involving himself in the enterprise was the hope that the principal offender, the cannabis supplier, who had given him work erecting garages and carports and undertaking general maintenance on buildings, would continue to do so. The Judge noted that “[g]iven your age [68], ill-health and the inability to work in the building industry on your own account, this proved to be an irresistible and attractive incentive.”

14. The Judge then characterised the applicant’s role in the enterprise as coordinating communication between the supplier, courier and purchaser so as to facilitate the trafficking offences. This involved the applicant in “discussions about pricing, delivering and negotiating the transaction on each occasion.”

15. The Judge then turned to the applicant’s personal circumstances and antecedents. He said:

    You are a 68-year old man born in Greece. You came to Australia when you were 13. Despite language difficulties which impeded your education, you led an industrious and hardworking life here in Australia; ‘long and rich’ as your counsel expressed it. You were at various times, involved in running cafes and nightclubs and other businesses, predominantly in the building industry over many years. Your personal circumstances are otherwise detailed extensively in various materials before the court, including the psychiatric report prepared in March of last year, so there is no need to repeat them in any detail.

    You came before the court with a number of prior offences involving trafficable quantities of cannabis. Relevantly, 10 kilograms of cannabis was trafficked between late December 2006 and early March 2007. You committed this offence to pay out drug debts incurred by your son, as well as a drug problem of your then partner. You were sentenced to an immediate term of imprisonment with a starting point sentence of four years and six months on 19 November 2009. On 12 October 2012, you were sentenced for trafficking 10 kilograms of cannabis to be transported interstate. The judge would have imposed a starting point sentence of five years before deductions.

    The current offences were committed after you were released on parole on 20 February 2014 with respect to the 2012 sentence, which only serves to compound matters further. At that time you still had a mortgage to service, were responsible for a young daughter and an aged father, as well as other responsibilities, and you were unable to work in the building industry as your building licence was no longer in force.

16. Thereafter the Judge imposed the sentence to which reference has already been made. In doing so he said:

    In the combined circumstances, an appropriate single head sentence is one of 10 years imprisonment. If it were not for your age, your ill health, and in order to avoid a crushing sentence, an appropriate starting point would be 12 years. This sentence is to be reduced by 12 months on account of the relatively late pleas of guilty, to 9 years, which is the maximum of 10% available.

    However, the balance of the unexpired portion of the previous sentence of one year, two months and 22 days must be added so that the aggregate head sentence is 10 years, two months and 22 days.

    When it comes to fixing a non-parole period, your age, frail health, continued responsibility for family young and old, your good behavior and productive work in the prison system count in your favour. As against that, the obvious seriousness of the offences committed whilst on parole, and in the context of previous distinctly similar offences, calls for a sufficiently deterrent sentence despite your age.

17. As mentioned, the Judge fixed a non-parole period of six years and nine months commencing on 14 October 2014 when the applicant was taken into custody.

    The submissions made in this Court

18. In this Court, counsel for the applicant contended that having regard to the applicant’s role in the enterprise, to his explanation for offending, his contrition, his age and personal circumstances, the sentence imposed was plainly excessive. In particular counsel emphasised the reasons for the applicant becoming involved in the enterprise. Having been imprisoned in 2009 for offending of a similar nature, the applicant’s builder’s licence lapsed. The applicant considered his prospects of successfully applying for a fresh licence poor. He had a mortgage to pay. As mentioned the principal in the enterprise offered him work. Bearing in mind his age and lack of education and qualifications, it was the prospect of ongoing work if he assisted in arranging the transactions that led the applicant to offend.

19. Counsel then contrasted the applicant’s role, personal circumstances and sentence with those of the defendants in R v Hunt; R v Yates[8] and R v Mema[9] and submitted that by comparison the applicant’s sentence was demonstrably excessive.

    [8] [2012] SASCFC 74.

    [9] [2011] SASCFC 56.

20. The respondent submitted that having regard to the fact that the applicant’s motivation for involvement in the enterprise was purely commercial, to his role in the enterprise, to his prior convictions concerning involvement in the illicit cannabis trade, to the fact that the offences were committed whilst the applicant was on parole for the same sort of offending, and to current sentencing standards for offending of this type, it was not arguable that the sentence imposed was manifestly excessive. Particular emphasis was placed on the applicant’s prior offending as denying any entitlement to leniency and fueling the need for a sentence that specifically deterred.

    Consideration

21. The maximum penalty for each of the three counts to which the applicant pleaded guilty was imprisonment for life or a fine of $500,000, or both.[10] In Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:[11]

    [10]   Controlled Substances Act 1984 (SA) s 32(1).

    [11] (2005) 228 CLR 357 at [30]-[31].

    Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:

    “A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...

    A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”

    It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case. That he used the maximum penalty impermissibly appears from his Honour's particular deference to it in this passage:

    “Parliament cannot have intended that, other things being equal, the penalty for supplying more than 250 g should be less than for supplying that quantity.”

    The form of the statement is explained by the fact that his Honour did not start with the maximum penalty for an offence involving the quantity in question, but used another maximum penalty as his starting point, that is, the maximum for an offence in the category of seriousness immediately below that of the principal offence.

    (footnotes omitted.)

1. The maximum penalty for the offences to which the applicant pleaded guilty  applies to trafficking in a quantity of cannabis plant material (including flowering and fruiting tops, leaves, seeds or stalks but excluding oil or resin) of 2kg or greater if the material is “pure”, and 12.5kg or greater if the material is “mixed”.[12]For the offence of trafficking in a commercial quantity, where the maximum penalty is $200,000 or imprisonment for 25 years, or both, the relevant quantities are 1-2 kg of “pure” and 2.5-12.5 kg of “mixed” material, and for that of trafficking, where the maximum penalty is $50,000 or imprisonment for 10 years, or both, 250 gms‑1kg of “pure” and 250 gms-2.5 kg of “mixed” material.[13] 

   [12]   Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 6, Schedule 1 Part 1. 

   [13]   Controlled Substances Act 1984 (SA) ss 32(2) and (3) respectively.

2. As to this quantity‑based penalty regime, in R v Young Kourakis CJ explained:[14]

   [14] (2016) 126 SASR 41 at [45]-[47].

   In the Second Reading Speech on the Bill for the Amendment Act the Attorney-General, the Honourable M J Atkinson, explained that the amendments were based on a report published in 1998 by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) on serious drug offences.  The MCCOC comprises the senior advisers on criminal law reform in the offices of the Australian Attorneys-General.  The report argued for a consistent approach to serious drug offences between all Australian jurisdictions.  After explaining the “tiered” system of offences and penalties, the Attorney-General concluded that:

   The Bill proposes the enactment of a logical, common-sense, refined structure for the tough and effective prosecution of serious drug offences.

   It is appropriate to set out some passages from the MCCOC report which informed the making of the Amendment Act.  The MCCOC identified, relevantly, three principles on which the model offences were founded:

   Principle 3: The central objective of trafficking legislation is to strike at conduct undertaken for profit.

   Principle 4: Since commercial trafficking is undertaken for profit, offences and penalties should be geared to the anticipated profit from the illicit transaction.

   Principle 5: Trafficking legislation, which is directed against commercial exploitation of the black market, should not discriminate between different drugs in the formulation of prohibitions and penalties. The grade of the offence should be determined by the magnitude of the anticipated return from the illicit transaction.

   With respect to principle 4, the MCCOC report stipulated that the “central measure of comparative liability is the quantity of the controlled drug involved in the offence”. It added:

   The Code distinguishes three grades of trafficking offences. They correspond, with rough equivalence, to the hierarchical structure of the illicit drug supply system. Grade I trafficking (section 6.2.2 Trafficking in large commercial quantity of a controlled drug) will be used for major dealers and their immediate associates and accomplices, who are close to the source of supply. Grade II trafficking (section 6.2.3 Trafficking in commercial quantity of controlled drug) catches “ounce dealers” and others who occupy the middle ranks of the hierarchy, while user-dealers, who deal in relatively small quantities to support their own habitual use, fall within the Grade III category (section 6.2.4 Trafficking in controlled drug).

   (citations omitted.)

3. Commerciality as a reference guiding the setting of maximum penalties reflects the level at which the offender is involved in the drug trade, the profit incentive operating at such level and the harm to the community that the distribution of such amount would cause. Hence the MCCOC report explained the approach involved in setting the quantities for each drug that bound the three levels of trafficking offences:[15]

   [15]   Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, MCCOC Report Chapter 6, Serious Drug Offences (October 1998) at 275.

   The Committee has identified the following three factors as central to the grade of criminality of the offence:

   ·the profit expected from illegal activity,

   ·the damage to the community, including:

   -    financial impact through the functioning of a black market and the diversion of funds from legitimate to illegal business enterprises,

   -    flow on crime such as property crime to finance use, and crimes of violence resulting from market competition and disputes;

   ·the damage done to the individual user,

   It is possible to take these factors into account in setting the quantities which will draw heavier penalties for trafficking in commercial and large commercial quantities. Anticipated profits from trafficking can be calculated from the street price of the drugs. Calculating the number of doses of a drug contained in a ‘deal’ gives some approximation of the number of people at street level likely to use the drug contained in that lot. Consideration of the volume of trade at street level, coupled with profit derived from sales to consumers, allows comparisons to be made of the harm done to the community by sales of particular quantities of different drugs.

4. Whilst those factors inform the quantity‑based boundary between the three levels of trafficking offences they are also relevant in the individual case to determining the appropriate penalty.

5. The quantity-based penalty regime has a further important consequence. As principle five referred to in the first quotation from the MCCOC report makes plain, no need arises to assess the seriousness of the particular offending by resorting to a comparison of the harmfulness of the drug involved with that of other illicit drugs. This is because the relative harmfulness of different drugs has been determined through the process of the Executive setting the prescribed amounts applicable to each of the offence categories.[16] That said, the assessment undertaken by the Executive does not apply in relation to cannabis, cannabis oil and cannabis resin. Section 44(2) of the Controlled Substances Act 1984 makes this plain. It provides:

   (2)   In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.

   [16]   Historically the approach was to sentence taking into account the relative harmfulness of the subject drug depending upon the ranking of the particular drug on the scale of seriousness.  See for example R v Mangelsdorf (1995) 66 SASR 60; R v Belcher (1981) 27 SASR 46; R v Rocco (1985) 37 SASR 515.

6. The reason for the carve out in relation to cannabis, cannabis oil and cannabis resin is also explained in the MCCOC report. With respect to principle five and its application to cannabis the MCCOC stated:[17]

   The illicit traffic in cannabis is associated with the same evils of corruption, violence and the financial derelictions of the black market economy as the illicit traffic in heroin or amphetamine. Chapter 6 defines trafficking in terms of sale or other prohibited activities involving a ‘controlled drug’, a category which runs the gamut of prohibition, from heroin to cannabis to anabolic steroids. The Code does draw distinctions between the quantities of cannabis and other drugs when different grades of the trafficking offence and the presumption of intent to traffic are in issue. That is a simple consequence, however, of the fact that cannabis represents, for the illicit trafficker, a far less concentrated form of wealth than heroin, cocaine or amphetamines.

   [17]   Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, MCCOC Report Chapter 6, Serious Drug Offences (October 1998) at 14.

7. The MCCOC report also said:[18]

   [18]   Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, MCCOC Report Chapter 6, Serious Drug Offences (October 1998) at 283-285.

   Commercial and Large Commercial Quantities of Cannabis

   Determination of the distinctions between minor and more serious grades of trafficking in cannabis is both difficult and contentious:

   ·Cannabis is by far the most commonly trafficked drug in Australia. Whilst major cannabis dealers are comparable with major heroin dealers in terms of the evils associated with their criminal activity, trafficking in small quantities of the drug is widespread among a large population of generally law abiding people. There are significant social costs in stigmatising these individuals as drug traffickers. The need to minimise the harms resulting from enforcement of prohibitions against trafficking is particularly compelling when minor criminality involving cannabis is in question.

   ·Though realistic distinctions between major and minor dealers are essential, quantitative measures of guilt provide a very rough guide indeed to the level of criminality of cannabis dealers. A substantial proportion of Australian cannabis consumption is supported by locally grown material, cultivated in some cases for personal use and in others for commercial sale. Substantial quantities are also imported. There is an enormous range in the quantity, quality and cost of street deals – everything from basic leaf at about $50 an ounce to good head at $650 an ounce – and it is sold in varying amounts; from cones, at about a third of a gram, to multiple ounces.

   ·Trafficking in cannabis extends from the activities of individuals who cultivate commercially to those who peddle small quantities of dried plant material, or cannabis extracts and preparations at the end of the distribution chain. When liability is imposed for cultivation, grades of criminality can be determined by the number of plants involved in the activity. Once the drug has entered commerce, however, measures of weight are necessary to determine grades of criminality and to provide a basis for the presumption of intention to traffic in the drug from possession of a trafficable quantity.

   ·Since extracts of cannabis commonly contain a higher proportion of THC and fetch higher prices on the illicit market, separate tables of quantities are required for more concentrated forms of the drug. In jurisdictions which distinguish among grades of commercial trading, most designate two or more different quantitative measures for cannabis plant material or ‘leaf’, ‘resin’ and ‘oil’. Almost all specify trafficable and commercial quantities for THC as well. The nature of the distinction between THC and other cannabis extracts is uncertain, since there are no specifications of THC levels for extracts.

   …

   ·The Committee has adopted a middle course between these extremes. Cannabis is divided into two categories for the purposes of setting commercial, large commercial and trafficable quantities. The object of the Committee’s recommendations is displace existing distinctions between cannabis in leaf form and cannabis resin or oil by specifying two grades of cannabis, distinguished by their THC content. The two grades are intended to reflect fair average estimates of the THC content of illicit commercial cannabis in vegetable form and illicit commercial cannabis in resin form.

8. In South Australia the MCCOC resolution to the difficulties associated with imposing quantitative measures of culpability for cannabis trafficking was not adopted. Not only did Parliament not divide cannabis into two categories, but cannabis, cannabis resin and cannabis oil as defined in the Controlled Substances Act 1984 are so broad as to include a drug range that is all the more highly variable in quantity, quality (narcotic concentration), and commercial value. Section 44(2) overcomes the difficulty by allowing for the amelioration of the application of the quantity‑based penalty regime for the tiered trafficking offences created in relation to cannabis, cannabis oil and cannabis resin. The result is that in each case a sentencing court confronted by a trafficker in cannabis, cannabis resin or cannabis oil must consider the quality of the cannabis, cannabis oil or cannabis resin, the quantity in which it is traded, and commercial value. Having done so the court will then be in a position to determine the comparative harm that the cannabis, cannabis oil and cannabis resin could potentially cause by comparison to other drugs and by comparison to other sentences involving drugs falling within the definitions of cannabis, cannabis oil and cannabis resin.

9. In R v Faehrmann; R v Moore; R v Price-Austin this Court said:[19]

   Section 44(2) of the Controlled Substances Act 1984 (SA) requires a court to determine penalty on the basis that controlled drugs, other than cannabis, are all categorised equally as very harmful. While this subsection renders sentences for different types of drugs such as heroin and methamphetamine comparable if all other things are equal, it does not affect the established proposition that, all other things being equal, a sentence for trafficking in cannabis is likely to be less than a sentence for trafficking in other drugs. Accordingly, sentences imposed for trafficking in drugs other than cannabis are of limited assistance in considering whether the sentences in the present case are manifestly excessive (although appropriate relativities between sentences for trafficking in cannabis and sentences for trafficking in drugs such as heroin and methamphetamine need to be maintained).

   (footnotes omitted.)

   [19] (2014) 118 SASR 549 at [40].

10. This may be accepted as a general proposition, but it does not follow that a sentence imposed for trafficking in cannabis, cannabis oil or cannabis resin will invariably be lower. Much will depend on the particular variant of cannabis, cannabis oil or cannabis resin the subject of the charge, the quantity, quality and commercial value and, indeed, the nature of the enterprise in which the offender is involved and his or her knowledge of the operations of that enterprise.

11. It follows that weight in relation to cannabis, cannabis oil and cannabis resin is not as strong an indicator of the gravity of the offending generally and the harm the drug poses to the community more particularly.

12. The benefit that an offender stands to gain from his or her involvement in a drug trafficking enterprise is ordinarily relevant to the assessment of the offender’s culpability and the weight to be afforded to the deterrent, rehabilitative and retributive purposes of any sentence imposed. The commercial value of the quantity of the drug trafficked determined by the number of street level deals into which it may be divided, and the market price of such deals, is also relevant. That value reflects the profit incentive motivating the enterprise and the illicit trade more generally whilst the number of street level deals reflects the danger to the community posed by the enterprise in which the offender participates. The preparedness of the individual to involve him or herself in an enterprise of a particular scale is also relevant to the assessment of the individual’s culpability and the deterrent and retributive purposes of any sentence imposed. Thus, an offender’s culpability is not measured simply by what he or she stood to gain, or simply by a consideration of the role he or she played in the enterprise. These things are most important, but so too is the offender’s knowledge of the nature of the enterprise in which they willingly involve themselves and the threat that the enterprise in which they participate poses to the community.

13. It should be borne in mind that drug trafficking enterprises cannot succeed without the involvement of a number of people undertaking particular roles. Where a court sentences a subordinate role player in an enterprise, whatever the immediate benefit that that person sought to obtain, the deterrent purposes of the sentence must aim to deter other would-be subordinates from involving themselves in such enterprises.

14. The total weight of the cannabis subject of the offences to which the applicant pleaded was 38 pounds, being 10 pounds (4.53 kg) in relation to count six and 14 pounds (6.35 kg) in relation to each of counts eight and ten. Bearing in mind the different quantities for trafficking in a large commercial quantity of cannabis and a commercial quantity of cannabis, it is to be assumed, the Information being silent, that the cannabis was not mixed. Nothing before us suggests that the THC content of the cannabis was unusual.

15. The commercial value of the three consignments was between $50,000 and $100,000. Having regard to Detective Duance’s declaration, 38 pounds if sold in bag lots at 2-3 grams per bag, could see between 5,700 and 8,600 bags sold and the commercial value of the consignments exceed $100,000. Clearly the commercial value of the consignments was significant. The associated risk of harm to the community was also significant.

16. The sentencing Judge’s characterisation of the applicant’s role in the trafficking venture accords with what was put to him by counsel for the applicant in submissions in mitigation, and accepted by the prosecutor.

17. On the hearing of the appeal we were advised that the offences were committed as part of a wider enterprise. No suggestion was made, however, of the applicant having any greater involvement in that enterprise than that evidenced by the offending to which he pleaded and his peripheral involvement in a further offence. As to that peripheral involvement in a further trafficking offence, I understand its only relevance to sentencing to be indicative of an ongoing intent on the part of the applicant to be involved with the principal offender and to assist, but nothing more. That is, a preparedness to involve himself in further criminality. He is not to be punished for this, of course, but it is relevant to an assessment of the need to deter specifically and of the applicant’s prospects of rehabilitation.

18. The investigation leading to the applicant’s arrest and charge was dependent upon the content of telephone intercepts. The intercepted calls supporting the counts to which the applicant pleaded guilty were before the sentencing Judge and thus were available to this Court. Having regard to those intercepts, it is apparent that the applicant was the common link between supplier, courier and purchaser and that, as facilitator, he was trusted by all and his knowledge and experience in the illicit cannabis trade were relied upon. That is, as a facilitator, his participation could not be described as purely passive as though he were simply executing the instructions of another without any discretion or independent input. Further, having regard to the intercepts, it cannot be said that the applicant was not aware of the scale of the enterprise in which he chose to participate, at least to the extent of it trading in the amounts subject of the charges and their value, and that the enterprise was ongoing.

19. Annexed to these reasons is a table setting out in summary form sentences imposed in recent times in cannabis trafficking cases involving large commercial and commercial quantities.  I have had regard to the content of the judgments in each of those cases. I have borne in mind the limited utility of a comparative analysis of sentences imposed for similar offending. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said in Hili v The Queen: [20] 

    Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

    In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.

    As the plurality said in Wong:

    [R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.

    (citations omitted; emphasis in original.)

    [20] (2010) 242 CLR 520 at [53]-[55].

1. And in Barbaro v The Queen, French CJ, Hayne, Kiefel and Bell JJ recognised the importance of historical sentencing standards as a yardstick for the sentencing judge against which to examine a proposed sentence:[21]

   The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence^..

   As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

   (citations omitted.)

   [21] (2014) 253 CLR 58 at [40]-[41].

2. The circumstances of each of the cases contained in the table are highly variable. They provide only the most general assistance. At a high level of abstraction they do suggest that it is arguable that a starting point of 12 years in this case was manifestly excessive. That impression demands closer analysis of all relevant factors. On that basis I would grant permission to appeal.

3. The sentencing Judge had the benefit of a report prepared by Mark Reid, a forensic psychologist, dated 31 March 2016. At the time of the preparation of Mr Reid’s report the applicant was 67 years of age. Mr Reid detected no clinical indication that the applicant suffered from any major mood disorder such as depression or anxiety and considered the applicant’s demeanour consistent with his experiencing a considerable degree of concern about his current situation but without any psychiatric features. Further Mr Reid did not detect any indication of any disorder of thinking either in form or content which would suggest an underlying psychotic disorder. Mr Reid added that the applicant’s conversational skills were appropriate and there was no obvious feature of cognitive impairment. He considered the applicant of at least average intellectual ability and that in the course of their consultation there were no indications of exaggeration or fabrication.

4. Mr Reid recorded that the applicant came to Australia from Greece with his family at age 13. At age 15, with an education to only year 7 standard, he left school to commence employment. Since then he has been employed throughout his life in many different areas. He has worked primarily in the building industry where, due to his long experience, he obtained a general builders licence. That licence lapsed when he was imprisoned in 2009. He has also worked in the security industry and been involved in owning and running various night clubs and coffee shops.

5. The applicant is married and has two children; a daughter aged 45 and a son aged 40. He also has a number of grandchildren. At one point in the marriage the applicant and his wife separated and the applicant commenced a relationship with a younger woman. There is a child of this relationship who is currently eight or nine years of age.

6. I turn to consider the applicant’s antecedents.

7. The applicant has three prior convictions for drug offending. I do not refer to the balance of his offender history. It would rightfully have attracted little if any attention in arriving at the sentence subject of this appeal.

8. In October 2001 the applicant was sentenced in the District Court of New South Wales for supplying cannabis. That offence occurred in 1998 when he delivered a consignment of cannabis to New South Wales. He was sentenced on the basis that it was a one off event committed to satisfy his son’s drug dealers and undertaken because of threats of violence to his family. On that occasion the applicant was sentenced to imprisonment for two years with a non-parole period of 12 months. It was accepted that his son’s addiction was the driving force behind his offending.

9. For over 10 years the applicant managed to avoid offending until 19 November 2009, when he was sentenced to imprisonment for two years and six months for one count of trafficking in a controlled drug contrary to the Commonwealth Criminal Code. That sentence was arrived at after allowing a discount of 40% on account of the applicant’s plea of guilty. The sentencing Court ordered that the applicant be released after serving 12 months of the sentence on condition that he enter into a recognisance in the sum of $1,000 to be of good behaviour for a period of 18 months.

10. The offending subject of the 2009 sentence concerned the transportation of 10 kilograms of cannabis to Sydney and Townsville. More particularly, 4.5 kilograms of cannabis in 10 vacuum‑sealed plastic bags was delivered to Sydney on 12 January 2007 and 5.4 kilograms of cannabis in 12 vacuum-sealed bags was delivered to Townsville on 17 January 2007. The applicant was sentenced on the basis that the offending was not an isolated occasion of trafficking and formed part of a sophisticated commercial trafficking enterprise.

11. The sentencing Judge accepted that the applicant engaged in the offending solely to pay out drug debts incurred by his son and to assist in his rehabilitation and otherwise did not profit from the venture. His role was characterised as that of a mid-level dealer engaging couriers to satisfy the demands of those higher up the chain. The sentencing Judge said:

    The sophisticated nature of the enterprise places this offending at the higher level of cannabis offending. I will sentence you on the basis that you are a mid-tier dealer, but the principal offender in that mid-tier group.

12. The Judge also said:

    The courts have made it abundantly clear that in offences of this nature involving a course of conduct, and a high degree of commerciality that principles of personal and general deterrence must take precedence.

    In your case, not only had you engaged in similar conduct, and for similar reasons, in 1998, but you continued with the delivery involving courier ‘O’ even after courier ‘B’ had been arrested.

13. Courier “O” travelled to Townsville after courier “B” was arrested in Sydney. The value of the cannabis involved was between $48,000 and $77,000.

14. On 12 October 2012 the applicant was sentenced for one count of trafficking in a commercial quantity of cannabis. In addition he was dealt with for breaching the recognisance subject of his 2009 sentence. The factual basis for the sentence was that the applicant had agreed to take a box to his shop to look after it for an unnamed man until someone came to collect it. The box contained 1.3 kilograms of female cannabis head with a street value of approximately $6,000. The applicant admitted that he knew that the box was likely to contain cannabis but did not ascertain that fact for certain. The man who had asked him to look after it was a creditor of his son and he agreed to look after the cannabis in order to assist his son. He was in the course of transporting the box to his shop when the police stopped him.

15. The applicant pleaded guilty on the day fixed for trial. He was sentenced to imprisonment for three years reduced from five years on account of his plea of guilty and other “public policy considerations”. A non-parole period of 18 months was fixed. In sentencing the applicant the Judge said:

    You were not acting under immediate duress when you committed your current crime, you have a poor record, your offence was serious and the various circumstances which operate in your favour do not combine together such that your recognisance could properly be spared.

    Your recognisance will be revoked and the sentence of 18 months will be carried into effect to be served concurrently with the sentence for your current crime.

16. In a pre-sentence report dated 3 February 2017, the writer recorded under the heading “Criminogenic factors”:

    [The applicant] has always maintained that his involvement in trafficking of drugs was to assist his son who had been involved in drugs for several years. He had maintained that he had done as he was told to do by other criminals in order to either pay his son’s drug debts or to ensure that his son was not harmed by criminal elements. He also had a partner for a short period of time who was involved in drugs and he has previously said that he had tried to eradicate her debts as well.

    Although [the applicant] is recorded as having suffered mental health and physical health problems and that he indulged in criminal activities for the sake of his son, there has to be a stage reached where he takes responsibility for his own actions, and it would appear that he has reached that stage now.

    The [applicant] does not appear to have a substance abuse problem to explain his actions, and therefore his criminogenic factors must be seen to revolve around his own anti-social attitudes/values, possible susceptibility to the influence of negative peer pressure and lack of problem solving skills.

17. In the body of the report it is recorded that the applicant now accepts responsibility for his actions and does not attribute his conduct in any way to feelings of protectiveness for his son.

18. The author also recorded that the applicant suffered two minor strokes in 2014 and had been prescribed medication for hypertension and high cholesterol. As further recorded, the applicant confirmed that he has memory loss or confusion due to the strokes, a point that his wife also wished to be made. That said, it is not suggested that he has any medical condition that cannot be satisfactorily managed in the prison environment, or which would result in the prison experience being unusually burdensome.

19. At the time of the preparation of the pre-sentence report the applicant indicated that upon being released it was his intention to live with his 92 year old father in an effort to assist his father who refuses to enter aged care. I also observe that whilst in prison the applicant has received good reports of his work ethic, his attitude to staff and fellow inmates, and his cleanliness in his cell. It is specifically recorded that he has worked very well assisting other inmates to cater for large numbers of individuals.

20. On three previous occasions the applicant has been imprisoned for cannabis trafficking. Twice he has returned to trafficking whilst being in the community and subject of supervision by Correctional Services. The telephone intercepts in this case include a call in which he informs the other party that he cannot attend to matters involving the relevant transaction immediately because he was “going to parole” at that time. The threat of an immediate return to prison has not served to deter the applicant. In such circumstances it is difficult to extend leniency to him.

21. His explanation for his offending does him no credit. It is regrettable that his prior offending has left him in the position where his ability to gain work in the building industry is compromised. It is also regrettable that after a “large and rich” life he finds himself at age 68 confronted by significant pressures which, had he not offended in the past, may not in all likelihood have eventuated. However the position in which the applicant found himself upon release on parole was the product of his involvement in trafficking in cannabis and yet, knowing all the risks associated with returning to the drug trade, he chose to do so.

22. It must be remembered that in sentencing the applicant his blameworthiness must be converted into the units of prison time relative to the head sentence and the blameworthiness of the supplier, purchaser and courier. As facilitator in the sense accepted by the sentencing Judge and explained above, his criminality is less than that of the supplier and purchaser. It is not the same as the courier, but falls somewhere between the supplier and purchaser on the one hand, and the courier on the other, and then closer to the supplier and purchaser. It is difficult to grasp from the telephone intercepts how integral the applicant’s involvement in the enterprise was, but it is clear that he was trusted and relied upon. He was no mere lackey.

23. The trafficking offences in this case are comprised of three separate incursions into criminality. If the Judge had imposed separate sentences for each, taking into account the fact that the scale of the enterprise could not have escaped the applicant, the relative blameworthiness of the applicant, the supplier, purchaser and courier, and the applicant’s antecedents, a starting point for each offence of around four years would not have been excessive. It would have been open to the Judge to have made such sentences cumulative. True revision might then be required to ensure that the overall sentence imposed was proportionate to the overall offending, but the scope to reduce such sentences or order partial concurrency in the wake of the applicant’s antecedents is minimal. The exercise suggests that the Judge’s starting point in this case was within the permissible range.

24. I have given anxious consideration to the age of the applicant and the unfortunate fact that at a time in life where he should be reaping the rewards of a large and rich life, he is instead in prison. Age of itself does not entitle him to any discount. I accept, however, that with the onset of old age he was anxious to obtain work and that his limited options proved a powerful influence on his decision to re-offend. But in the wake of his prior offending and the sentencing remarks of the Judges who sentenced him in the past, he could have been left in no doubt as to the consequences should he be caught. That same response answers the plea that he now stands to lose important years with his family and cannot look after his father.

25. I have also considered the proportion of the non-parole period to the head sentence. It is settled that a non-parole period reflects the minimum proportion to the head sentence that must be served to achieve the purposes of the head sentence.[22] In Power v The Queen Barwick CJ, Menzies, Stephen and Mason JJ said with respect to the Parole of Prisoners Ordinance 1971 (ACT) (but no less applicable to Part 3 Division 2 of the Sentencing Act):[23]

    To read the legislation in the way we have suggested fulfills the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.

    [22]   Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Knight v Victoria (2017) 91 ALJR 824 at [8] (The Court).

    [23] (1974) 131 CLR 623 at 629.

26. In Lowe v The Queen Gibbs CJ said:[24]

    No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.

    [24] (1984) 154 CLR 606 at 610.

27. And in The Queen v Robinson, in a passage referred to with approval by Dawson, Toohey and Gaudron JJ in Bugmy v The Queen,[25] King CJ said:[26]

    … it seems to me that in deciding whether to fix a non-parole period and in determining its length, the South Australian courts should be guided by the ordinary principles of sentencing. A judge may consider that in a particular case justice requires that the offender spend a minimum period in confinement or that the crime was so outrageous that the conscience of the community would be affronted by the offender’s early release. He may consider that a minimum period of confinement is necessary to deter the offender or others from future criminal activity. He may in assessing the sentence have been influenced by the need to protect the community from the criminal propensities of the offender and may consider that this can be achieved only by a minimum period of detention. He may believe that prospects of the offender’s reformation may be enhanced by a stiff period of detention, although in this regard the Judge would doubtless have in mind the point made by Bray C.J. in Reg. v. Collingridge that the Parole Board is in a better position than the Court to estimate the effect of imprisonment on the offender and the extent to which release under supervision will promote his prospects of rehabilitation. These and other considerations arising out of the accepted sentencing principles may incline a Judge to fix a non-parole period, and, if he decides to do so, should guide the exercise of his discretion as to its duration.

    (footnote omitted.)

    [25] (1990) 169 CLR 525 at 538.

    [26] (1979) 22 SASR 367 at 369-370.

28. Here the non-parole period imposed is approximately two thirds of the head sentence. In the past the applicant has received non-parole periods in 2001 and 2009 of 12 months and in 2012, 18 months.[27] He is now subject to a considerably longer term of imprisonment. Nevertheless, the applicant’s antecedents and the fact that he committed the current offences whilst on parole, merited a non-parole period that acted as a significant punishment. So too for the reasons I have given specific deterrence and general deterrence loomed large in the determination of the appropriate non-parole period. Against these factors is the applicant’s age and the deterrent effect of the prospect of being released from custody when he is almost eighty were he to breach parole upon his release. However, in all the circumstances, I do not think it can be said that the non-parole period as a proportion of the head sentence can be said to be so high as to be plainly wrong.

    [27]   For convenience I have referred to the 2009 12 month period as a “non-parole period”, whereas the applicant was to be released after 12 months on a bond for $1000 to be of good behaviour.

    Conclusion

29. I would grant permission to appeal but dismiss the appeal.

    Annexure

Comparison of Sentences Imposed for Cannabis-related Offences[28]
Offences	Quantity/Quality/ Value	Benefit to Offender	Enterprise/ Isolated Offending	Offender’s Role	Relevant Antecedents	Sentence
R v Dell; Dell [2016] SASCFC 156
-     S 33B(2): Cultivation of commercial quantity controlled plants for sale - S 32(1): Trafficking in a large commercial quantity of a controlled drug x2	-     20 growing cannabis plants -     4.32kg dried cannabis -     3.61kg drying cannabis	$60k if all sold but no evidence led as to any actual benefit received	Sentenced on basis that the offending was part of a “sophisticated commercial operation” [75]	Both appellants “personally involved in the cultivation and trafficking” [20]	-     First appellant: “two serious drug offences committed many years ago” [59] -     Second appellant: Some “not serious” cannabis offences [58]	-     First instance:[29] Head sentence 3 yrs 6 mths; non-parole period 18 mths -     Appeal dismissed: sentence not manifestly excessive; no error in failing to impose a home detention order (inter alia)
R v Standley [2016] SASCFC 141*
- S 32(1): Trafficking in a large commercial quantity of a controlled drug - S 32(2): Trafficking in a commercial quantity of a controlled drug -     S 33K(1)(b): Cultivating more than the prescribed no. of plants -     S 33LA: Possessing prescribed equipment - S 85(1)(a) Electricity Act 1996: Diverting electricity, -     [and offences of driving disqualified x2, providing false details x2, breach bail x4, furnishing false information]	-     5.7kg dried cannabis (wholesale value $43k to $58k) -     12.6kg cannabis (wholesale value $92k to $126k) -     6 semi-mature plants & 25 small potted plants	Appellant “was to receive $200 per pound for his part in the operation” [7]	Interstate enterprise; Sentenced on basis that appellant was “engaged in a course of conduct and the trafficking… was not isolated” [14]	“Intermediary” [7]	Prior conviction for cultivation	-     First instance:[30] Total of the 5 sentences imposed were made cumulative to bear a total head sentence of 11 yrs, 9 mths and 2 wks; non-parole period 6 yrs -     Appeal allowed: starting point for the trafficking offences disproportionate (inter alia). Resentenced to 8 yrs and 8mths for the drug-related offending and 2 mths and 2 wks cumulative upon 2 mths for both driving disqualified offences; non-parole period 5 yrs
R v Donald; Pitt; Whitaker [2016] SASCFC 117*
Donald -     S 32(3): Trafficking in a controlled drug (methamphetamine) x16 - S 32(2): Trafficking in a commercial quantity of a controlled drug x4 -     S 33A(2): Trafficking in a commercial quantity of a controlled precursor -     S 33I(1): Possessing a controlled drug for supply (methamphetamine) -     [and offence of driving dangerously to escape police pursuit] Pitt -     S 32(3): Trafficking in a controlled drug (methamphetamine) x9 -     S 32(3): Trafficking in a controlled drug Whitaker - S 32(2): Trafficking in a commercial quantity of a controlled drug x6 -     S 32(3): Trafficking in a controlled drug (methamphetamine) x7 -     S 32(3): Trafficking in a controlled drug x12	Donald -     281.38g methamphetamine in total -     5.68kg cannabis in total -     370ml precursor Pitt -     196g methamphetamine in total -     907g cannabis Whitaker -     182g methamphetamine in total -     11.2kg cannabis in total	Not specified	“Comprehensive drug trafficking network” involving purchasing in large quantities and on-selling in smaller amounts to regular customers in rural areas [4]	Donald: Purchaser and seller of methamphetamine and cannabis [55] Pitt: “Primary seller” [58] Whitaker: “Operated a cannabis trafficking enterprise from his residence” [53]	Nil	Donald[31] -     First instance: Head sentence 15 yrs; non-parole period 9 yrs Pitt -     First instance: Head sentence 11 yrs and 9 mths; non-parole period 6 yrs Whitaker -     First instance: Head sentence 15 yrs; non-parole period 9 yrs -     Appeal allowed: approach adopted by the sentencing Judge erroneous; appellants to each be resentenced
R v Skinner [2016] SASCFC 106*
- S 32(1): Trafficking in a large commercial quantity of a controlled drug S 33B(2): Cultivation of commercial quantity controlled plants for sale	-     28kg dried cannabis -     32 cannabis plants -     Combined prospective value of $120k at “higher end of the scale” [41]	Received some cannabis for personal use and payments totalling $4k to $5k	Sentenced on the basis of a “single criminal episode” [74]	Sentenced on the basis of “limited involvement”; culpability limited to permitting his farm to be used for cultivation and trafficking [44] to [45]	Nil	-     First instance: Starting point 3 yrs and 4 mths; head sentence 2 yrs and 8 mths; non-parole period not set -     Appeal dismissed: no good reason to suspend
R v Hucks [2016] SASCFC 92*
- S 32(1): Trafficking in a large commercial quantity of a controlled drug	-     4.39kg of cannabis in 11 vacuum-sealed bags packaged in lots of one pound -     Each bag prospective value of $2k to 3k	Not specified	Sentenced on the basis that this was a “professional, commercial cannabis operation” [22]	Objective facts were “silent” as to precise role but “Judge was not bound to take the view that the appellant’s role… was a menial one” [22]	Not specified	-     First instance: Starting point 6 yrs and 6 mths; head sentence 5 yrs and 2 mths; non-parole period 3 yrs -     Appeal dismissed: at the higher range of available sentences but not manifestly excessive
R v Faehrmann; Moore; Price-Austin [2014] SASCFC 25*
Faehrmann     - S 32(1): Trafficking in a large commercial quantity of a controlled drug -     S 32(3): Trafficking in a controlled drug x2 -     [and breach suspended sentence bond] Moore - S 32(2): Trafficking in a commercial quantity of a controlled drug -     S 32(3): Trafficking in a controlled drug x4 -     [and breach parole] Price-Austin - S 32(1): Trafficking in a large commercial quantity of a controlled drug -     S 32(3): Trafficking in a controlled drug x2 - S 41(1) Summary Offences Act 1953: Unlawful possession	-     Charged period between 22 Oct 2009 and 6 March 2010 -     On average there was a delivery of 4 pounds each fortnight	For each 4 pound delivery $12k net profit split between Faehrmann, Moore and a 3rd business partner; Price-Austin received $1500	Agreed facts that the charges arose as part of a course of offending spanning 4.5 mths [37]	Faehrmann: Principal Moore: Principal Price-Austin: “hands on manager of the operation at Mintabie”[72]	Faehrmann     -     Possessing cannabis Moore -     Multiple convictions for possession of drugs -     Selling or taking part in the sale of cannabis x7 -     Possessing cannabis for sale Price-Austin -     Multiple convictions for possession of drugs or possession of drugs for supply	Faehrmann     -     First instance: Starting point 12 yrs; head sentence 9 yrs; non-parole period 7 yrs cumulative upon 15 mths for revoked suspended sentence Moore -     First instance: Starting point 11 yrs; head sentence 8 yrs and 3 mths cumulative upon unexpired parole of 18 mths and 14 days; non-parole period 7 yrs Price-Austin -     First instance: Starting point 9 yrs; head sentence 6 yrs and 9 mths; non-parole period 4 yrs and 5 mths -     Appeal allowed: sentences manifestly excessive.  -     Each appellant resentenced: Faehrmann: 7 yrs and 6 mths cumulative on 15 mth suspended sentence; non-parole period 5 yrs 10 mths Moore: 7 yrs and 6 mths cumulative on unexpired parole of 18 mths and 14 days; non-parole period 6 yrs Price-Austin: 4 yrs and 10 mths; non-parole period 2 yrs and 11 mths
R v Hunt; Yates [2012] SASCFC 74*
Hunt - S 32(1): Trafficking in a large commercial quantity of a controlled drug Yates - S 32(1): Trafficking in a large commercial quantity of a controlled drug -     S 32(3): Trafficking in a controlled drug (cocaine)	-     99 pound bags of cannabis (purchased for $2.4k to $2.5k per pound and expected to on-sell for $700-$1k profit per pack) -     2 bags containing 9.04g and 148.9g of cocaine (valued between $30k to $75k)	Hunt -     $10k and accommodation Yates -     Profit on the sale	Commercial trading of cannabis interstate	Hunt -     Interstate courier Yates -     “driving force” [10]	Hunt -     “one drug offence” [34] Yates -     not specified	Hunt -     First instance: Starting point 4 yrs; head sentence 3 yrs and 4 mths; non-parole period 2 yrs and 4 mths Yates -     First instance: Starting point 12 yrs; head sentence 10 yrs; non-parole period 7 years -     Appeal dismissed: sentences not manifestly excessive
R v Mema [2011] SASCFC 56*

[28] All offences relate to cannabis unless otherwise indicated and all references are to the Controlled Substances Act 1984 (SA) unless otherwise indicated. An asterisk denotes a case in which the appellant pleaded guilty.

[29] Note the starting point is not evident on a reading of the appeal judgment.

[30] Note that the sentencing Judge did not utilise section 18A of the Criminal Law (Sentencing) Act 1988 and as such, a starting point for each count was imposed. For the trafficking in 5.7 kilograms of cannabis the appellant was sentenced 4 years, 2 months and 2 weeks (reduced from 6 years on account of his plea); for for the trafficking in 12.6kg of cannabis 6 years (reduced from 10 years on account of his plea); for cultivating more than the prescribed number of cannabis plants, having possession of prescribed equipment and diverting electricity 1 year, 2 months and 2 weeks (reduced from 2 years on account of his plea); for driving whilst disqualified in February 2015 2 months (reduced from 3 months on account of his plea); for driving whilst disqualified in April 2015 2.5 months (reduced from 4 months on account of his plea).

[31] Note the sentencing Judge did not utilise section 18A of the Criminal Law (Sentencing) Act 1988 to impose a single starting point for each count; the starting points imposed can be located at [46] of the judgment on appeal.